Extension of temporary exemptions: Australasian Railways Association

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (Cth), Sections 55(1)

The Human Rights and Equal Opportunity Commission (‘the Commission') gives notice of its decision, on 6 January 2010, on an application by the Australasian Railways Association on behalf of its members for further temporary exemptions pursuant to section 55(2) of the Disability Discrimination Act 1992.

Decision Of The Commission

The Commission has decided to grant further exemptions so as to continue in effect until 23 July 2010 the exemptions granted by the Commission to the members of the Australasian Railways Association on 23 January 2007 and on 5 November 2007 (available on its website).

Consideration And Reasons

In making its decision, the Commission had regard to the terms and objects of the DDA; the application, and documents available on its website in relation to the prior exemptions granted to the Australasian Railways Association.

The applicants requested that the effect of the existing exemptions (due to expire on 23 January 2010) be extended for a further period of 18 months to provide regulatory certainty while they

• continue to undertake major purchasing and infrastructure works necessary to increase the provision of accessible rail public transport and
• complete the development  of a rail industry Code of Practice on accessibility with the intention of translating the obligations of the rail industry under the DDA, the Disability Standards for Accessible Public Transport and the current temporary exemptions into practical and detailed performance criteria.

Noting that the exemptions granted do not postpone provision of access or excuse non-provision but rather seek to define in operational terms what the required access is, the Commission decided to grant the further exemption requested. However, the further exemption granted is to extend only for a period of 6 months beyond 23 January 2010 not 18 months as requested.

Subsequent to the application being made, a technical difficulty affecting the Commission's handling of this application was drawn to the Commission's attention. This was, in brief, that as an unintended consequence of a legislative scheme to migrate the power to grant of exemptions in relation to the Disability Standards for Accessible Public Transport from section 55(1A) of the DDA to within the Standards themselves, a gap in the power of the Commission to make decisions on exemption applications regarding the Standards would arise from 8 January 2010 until a point in May or June 2010 when 15 sitting days will have elapsed following the tabling of the amended Standards which include this power..

The Commission did not consider it practicable prior to conduct meaningful public consultation on the application, in accordance with its usual practice, in the limited period available prior to 8 January. Neither did the Commission consider it appropriate to in effect refuse to consider the application by postponing a decision until its power to make a decision had lapsed.

Having regard to the extensive process of consultation applied to the original exemptions the Commission considers it appropriate to grant a six month period of further exemption, during which it will be possible to provide an opportunity for public comment on the appropriateness of granting a more extended period of further exemption when the Commission's power to consider such an exemption is restored.

Review Of Decision

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 7th day of January 2010

Signed on behalf of the Commission by Commissioner Graeme Innes AM